Partition suit
Guest
(Querist) 29 November 2017
This query is : Resolved
Hi ,
My name is vikas and am based out of hyderabad, i wanted to know few things regarding partition suit.
we have an asset owned which is in dispute the lower court(city civil court) has passed an preliminary decree stating that "the scheduled property can be divided into two equal shares and seperate petitions can be filled for mesne profits if any.
we have filed a petition in high court for issuing the stay("there shall be an interim stay on passing the final decree adn all other proceedings shall go on ,if any") against the lower court order.
Next the plaintiff have filed IA for appointing advocate commission , thereafter we have raised a question in court against the IA stating "since there is a stay for final decree the advocate commission cannot be appointed untill the stay is lifted".
Now the high court has passed an order as below
"while upholding the order of trial Court, only to clear
the mist as apprehended by the petitioners, I deem it appropriate
to clarify that the Order of the trial Court, against which this
petition is filed, is only to the extent of the advocate commissioner
undertaking exercise to divide the suit schedule property into two
shares in terms of the preliminary decree and to submit a report to
the trial Court and that he is not authorized to divide the suit
schedule property physically."
Is there any chance for stopping the advocate commissioner not to be appointed and also would like to know on good adovcate in hyderabad to contact .
Thanks in advance ,
Vikas Chandra. C
Vijay Raj Mahajan
(Expert) 29 November 2017
The High Court order is very clear, the appointment of the advocate commisioner is clearly mentioned for limited purpose to divide the suit schedule property into two shares and submit the report to the trail court and he is not authorised to divide the suit schedule property physically, what the advocate commissioner is supposed to do is the identification of the property, making a division of the same in two equal shares on papers and submit his report to the trail court. The trail court is not going to pass any final decree as stay exists against it made by the High Court. What the High Court intented that the suit proceedings to continue but the final decree not made till the issue in dispute is decided by the High Court. The intention to continue the suit proceedings in trail court was done just to save time that will be wasted at later stage if there was complete stay granted for any process to continue in the trail court allowed by the High Court.
The number of cases pending in various courts make things difficult for all litigants, judges and unnecessary stays stopping the trail is not serving purpose of getting the courts free of the pending cases.
Guest
(Querist) 29 November 2017
I Want to thank you for taking time in helping me to understand on my query , further i would also like to know is there any chance where we can file a suit in high court or in suprme court for even stopping the action issued by high court, my mother is so very worried on this.
Apologies if i have put any thing wrong.
what is the probability of issuing either stay or passing the final order that if we go for superme court or high court if we challenge this ?
Our advocate has said that if you want to stop there is only chance of raising your voice at supreme court .
Thanks again for all you expert guidance.
Vikas Chandra.C
Vijay Raj Mahajan
(Expert) 29 November 2017
Supreme Court entertains petitions if there exists substantial question of law or constitutional issue or issue relating to infringement of principle of natural justice, ignored or avoided or misinterpreted by the subordinate courts, is there any such issue in your case that will attract the Supreme court to act upon it? If not than just don't waste money filling SLP in the Supreme Court against the order of the High Court as most SLPs get dismissed at the admission stay by the Apex Court.
Guest
(Querist) 29 November 2017
Hearty thanks for all your advice and help sir
P. Venu
(Expert) 29 November 2017
You have not disclosed the complete fact. How you are aggrieved by the terms of the preliminary decree. It is unconvincing that you had approached the High Court for the purpose of obtaining the Stay. What are the substantial reliefs sought?
